California enacts “Right to be Forgotten” for Minors

Following Europe’s recognition of the “right to be forgotten” online, California has enacted its own version of the requirement, though limited to the state’s residents who are minors under 18 (“Minors”). The California law (Cal. Bus. & Prof. Code §§ 22580-81), which became effective January 1, 2015, applies to websites, social media sites, mobile apps and other online services. The law entitles Minors to the right to request and obtain the removal from public view of certain content that they submit to a website, app or other online service.

The law should prompt online businesses to review and update their privacy practices, site and mobile app terms and privacy notices to ensure compliance.

Who’s affected by the law?

Owners (rather than third party operators, hosts or managers) of:

Websites;

Mobile applications; and

Other online services (a broad, open-ended concept).

To be subject to the law, an online service must predominantly target California residents under 18 or have actual knowledge that its users include Minors.

What must affected owners do?

The law requires owners of online services to:

Permit registered users who are Minors to remove or request and obtain the removal of content or information posted by the Minor on the online service;

Provide notice of these rights to registered users who are Minors;

Provide clear instructions to such Minors on how to remove or request the removal of their content or information; and

Inform the Minors that the removal of their content or information is not “complete or comprehensive”.

Exceptions

Online services are not required to remove Minors’ content or information when:

Federal or state law requires the business to retain the information;

The information was stored or posted by a third party;

The online service anonymizes the content or information;

The Minor does not follow the appropriate instructions to remove or request the removal of the Minor’s information; or

The Minor has received compensation or other consideration for providing content.

In addition, online services are deemed to be in compliance with the law if:

The online service renders the content or information provided by the Minor “no longer visible” to other users or to the public; or

A third party copies or reposts the content or information that the online service has removed.

Issues that businesses should consider

To facilitate compliance, owners of online services should consider the following issues:

Does the owner’s website, app or other online service target California residents under 18?

Does the owner have actual knowledge that the online service’s audience includes California residents under 18?

Does the website, app or online service have registered users?

If the answers to those questions are yes, then the business should consider whether it has:

Updated the online service’s terms and notices to provide the notices and instructions to Minors that the law requires; and

Put in place processes, policies and procedures to comply with the law’s requirements and to handle users’ requests to be “forgotten.”

Children’s privacy will continue to be a hot topic in 2015 in both advertising and education space. We will cover these issues in our blog throughout the year.

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